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Failure to Date Reorganization Memos Does Not Defeat Summary Judgment

    Client Alerts
  • August 09, 2019

When we respond to allegations of employment discrimination, reconstructing the timeline of events is crucial. In these situations, the parties often agree what happened (i.e., the employee was terminated). Where they differ relates more to the employer’s motivation for the decision. When the timeline shows that the employer’s decision was made prior to the time it learned of, say, an employee’s medical condition or harassment complaint, the inference of a discriminatory or retaliatory motive behind the decision disappears.

Last week, the Eighth Circuit Court of Appeals found that an employer’s failure to date internal documentation of its decision-making process did not prevent it from obtaining summary judgment on the plaintiff’s retaliation claims. In Lacey v. Norac, Inc., the plaintiff alleged that she was terminated after she refused to sign an affidavit supporting the company’s position in a retaliation claim brought by a co-worker. In response, the employer produced memoranda demonstrating that the plaintiff’s position had been chosen for elimination due to a corporate restructuring. The memos were undated, but the employer testified that they memorialized discussions that took place before the plaintiff was asked to sign the affidavit.

After the district court granted summary judgment to the defendant, the plaintiff appealed, claiming that the memos were created after the fact to cover up retaliatory motives for the termination. The Eighth Circuit rejected this argument, calling it speculative and without any evidence to back it up. The court noted emails later produced by the employer – and dated before the affidavit request – that discussed implementation of the reorganization.

It goes without saying that all internal documentation of business reasons for actions that affect employees should be clearly dated. However, in the occasional situation where this information is not provided, this case shows that the employee’s assertion of misconduct by the employer without other evidence will not be enough to disprove the timeline.